Thursday, 22 May 2014

Is it a parody? The Advocate-General’s opinion in the Deckmyn case

As was expected, the Advocate-General’s opinion (not yet available in English) in the Deckmyn case was released this morning. This dispute involves interesting
questions such as the interpretation of the parody copyright exception, the
requirements attached thereto and its relationship with other fundamental
rights.

The provision concerned isArticle 5(3)(k) of the Infosoc Directivewhich allows Member
States to introduce an exceptionto
the reproduction right (Article 2 of the Directive) and the right of
communication to the public (Article 3 of the Directive) for the purpose of
caricature, parody or pastiche.

As the English introduction of a parody exception is being currently delayed,
along with the continuation of criticism surrounding the Infosoc directive, the
AG’s opinion is very much welcome. Additionally, as Member States have the
habit of tailoring copyright exceptions to their legal traditions, the AG’s
opinion (despite its lack of binding effect) is a meaningful clarification of the
meaning and scope of the parody exception at EU level and provides insight as
to its interplay with other fundamental rights.

The facts

The facts are pretty straightforward and concern the
distribution of a calendar of which the front page reproduces a well-knownSpike
and Suzy(Suske and Wiske) album cover distorted in a way to
promote a political message of the Vlaams
Belang’s party (Flemish
nationalist political party). Unequivocally,
the alleged infringing work represents the City of Ghent’s Mayor, Mr Termont,
wearing a white tunic with a belt displaying the Belgian colours, distributing
money to people from different backgrounds.This
calendar was distributed during the party’s New Year’s Eve reception and later,
in brochures as well as on the party’s website. Consequently, the heirs and
rightholders of Mr Willebrord Vandersteen
(the author of the comic albums) claim infringement of their copyright in the
comic albums against Mr Johan Deckmyn (member of the Vlaams Belang’s party) and
the Vrijheidsfond, the association responsible for the party’s funding and
promotion.

The
two works:

The applicants argue that the alleged infringing
drawing reproduces the general aspect of the original cover and other typical
elements of the Spike and Suzy album covers such as the orange colour, font,
characters, and title. The main differences between the two
works lie in the substitution of the Spike and Suzy’s character for a depiction
of Ghent’s Mayor joined to the characters chosen to pick up the coins conveying
a discriminatory message and the
addition of a handwritten statement “Fré freely in the style of
Vandersteen”.

At national level, the
court of first instance granted an interim injunction preventing further
distribution of the calendar. Subsequently, the defendants appealed arguing
that the work is allowed as it falls under the parody exception. The applicant
also appealed to prohibit the political party to use the protected works in any
manner.

After recognising the
absence of uniformity in the legal tests applicable to the parody exception,
the Brussels Court of Appeal decided to refer to the Court of Justice of the
European Union (CJEU).

1. Is the concept of 'parody' an independent
concept (read “autonomous concept”) in European Union law?

2. If so, must a parody satisfy the following
conditions or conform to the following characteristics:

- the display of an original character of its own
(originality);

- and such that the parody cannot reasonably be ascribed
to the author of the original work;

- be designed to provoke humour or to mock,
regardless of whether any criticism thereby expressed applies to the original
work or to something or someone else;

- mention the source of the parodied work?

3. Must a work satisfy any other conditions or
conform to other characteristics in order to be capable of being labelled as a
parody?

The opinion

Preliminary remarks

Before turning to the analysis of the questions referred by the Belgian
court, the AG notes what is not asked
of the court and consequently, what is left out of the opinion.

Firstly, as moral rights are
excluded from the scope of the directive (recital 19), their ensuing violation
is left to the assessment of national judges.

Secondly, the interpretation of the three-step
test enshrined in Article 5(5) of the directive requiring copyright
exceptions to be applied “in certain special cases which do not conflict with a
normal exploitation of the work or other subject-matter and do not unreasonably
prejudice the legitimate interests of the rightholder” is also left out of the
questions referred. Accordingly, the AG emphasises the role of the national
judge to verify whether these conditions are met in the dispute.

Finally,
the AG observes that the Belgian Court does not ask the CJEU to evaluate the
Belgian limit to the exception whereby the exception is applicable if the work
is created in accordance with honest practices (see Article 22(1)(6) of the Belgian Copyright
Act1994).

The analysis of the questions referred

In relation to the first question referred, the AG states that “parody”
is an autonomous concept of EU law, because the Directive refrains from
defining or expressly referring to the Member States for the definition of that
concept. This being said, the AG adds that when EU law does not provide
sufficient guidelines, the nature of an autonomous concept does not preclude Member
States from having a large margin of appreciation to determine the requirements
attached to the exception.

Turning to the two other questions referred, the AG decides to address
these together as they relate to the requirements for invoking the exception. Firstly,
the AG notes that there is no significant distinction between the three
concepts mentioned in the provision (parody, pastiche and caricature) and
considers them together as they all share the common feature of being an
exception to copyright. After consulting dictionaries to grasp the ordinary
meaning of parody and its Greek etymology, the AG establishes common features
to any parody. These comprise structural and functional features.

Structural features of parodies

A parody is
simultaneously copy and creation. The nature of parody requires borrowing
elements from earlier works. These elements borrowed can consist in essential elements
of the original work as for the parody to be successful the earlier work must
be recognisableto the public. But the parody is also creation as the
parodist distorts the original work and it is in his interest that the public
does not confuse the new work with the original work.

Against this
backdrop, the AG attributes to Member States the duty to determine whether the
new work incorporates enough new elements to not constitute a mere copy of the
original with little modification. In light of the foregoing, the AG notes that
Member States can adopt different requirements such as the absence of
confusion, sufficient detachment or whether more elements are copied than
necessary.

In a nutshell, the
parody needs to be original in a sense that it must not be confused with the
original work it borrows from.

Functional features of parodies

To break down the reasoning,
the AG distinguishes between its subject, effect and content.

Firstly regarding
the subjects (or targets) of parodies, the AG supports that parody works can
either target the earlier work or its author, or a third subject external to
the work it borrows from.

Secondly, the
effect of the parody must be humorous. However, the AG
leaves the assessment of the kind of comical effect required to Member States
which bear an important margin of appreciation to determine whether the parody
meets this threshold.

Thirdly in relation
to the content of parody and the influence of fundamental rights, the AG
examines the relationship between copyright (Article 17(2) of the Charter of fundamental rights) and the parodist’s freedom of expression (article 11(1), EU Charter of
Fundamental Rights). The national judges must bear in mind the importance of
preserving the freedom of expression, an essential feature of any democratic
societies. This being said, this right is not absolute. Besides the limits on
the right set out in Article 10(2) of the European Convention on Human Rights, the Charter protects other values which may conflict with the freedom
of expression such as human dignity (Article 1 of the Charter) and
non-discrimination based on cultural, religious and linguistic diversity
(Article 22 of the Charter). Based on this, the AG notes that the parody
exception should not be refused just because the author of the original work
does not approve the comment made through the parody. Nevertheless, the AG suggests
an important limit upon the application of the exception by stating that the
exception is inapplicable where the parody conveys “a message radically
contrary to the deepest values of a particular society” (this quote is
translated from the French version by the author of this post). In conclusion,
national judges must weigh the different fundamental rights in relation to the
circumstances of the particular case.

Comments

As this is the
first parody case referred to the CJEU, this dispute is likely to attract a lot
of attention and possibly, criticisms. By making “parody” an autonomous concept
of EU law, the AG follows the CJEU’s consistent approach endorsing the need for
a uniform application of EU law. For example with the Padawan decision in relation to the autonomous
concept of “fair compensation”, the Court stated : “according to
settled case-law, the need for a uniform application of European Union law and
the principle of equality require that the terms of a provision of European
Union law which makes no express reference to the law of the Member States for
the purpose of determining its meaning and scope must normally be given an
independent and uniform interpretation throughout the European Union; that
interpretation must take into account the context of the provision and the
objective of the relevant legislation” (See Padawan at para 32).

Interestingly, when it
comes to defining what parody consists of, the AG chooses not to distinguish
the three terms parody, caricature and pastiche. This appears to be in line
with the nature of parody which is seen as a multivalent term covering among
others satire, pastiche, caricature, spoof, irony and burlesque.

By the structural feature,
the AG acknowledges the particular nature of parody which requires both copying
and creation. The AG infers that national judges have to weigh whether the
parody comprehends enough creation to exclude representing a slavish imitation
of the original. Ultimately, this is where the difficulty lies as parodist
needs to copy enough elements to trigger the memory of the original work in the
public and simultaneously, supply enough new elements to avoid confusion. Against
this backdrop, the AG requires the parody to be original rather than a mere
copy with little alteration of the original. One is allowed to wonder what kind
of originality is required. Are we talking of the ordinary meaning of
originality or the copyright law meaning (i.e. “original” enough to trigger
copyright protection)? On this question, the AG seems to leave the assessment
to the national judges.

Moving on to the functional
features of parody, the AG appears to allow the application of the exception to
both target (commenting either on the work it borrows from or its author) and
weapon parodies (using the parody to comment on a third subject). This approach
departs from the US distinction made in the landmark Campbell decision where the US Supreme Court held
fair use applicable only to target parodies. This being said, this brings the
EU closer to other jurisdictions such as Australia and Canada where legislators rejected the distinction
between target and weapon parodies in the wording of the provision.

The effect of parody needs
to be humorous. The assessment of the required comical effect is left to the
national judges and depends on the particular circumstances of the case.
However, the AG appears to be in favour of a liberal
interpretation as the parody exception relies heavily on freedom of expression
considerations. This being said, one wonders whether the effect equals the
result of the parody itself. Indeed problems could arise if it is the effect of
the parody on the public which is required. This is explained by the fact that
this effect relies on several accounts such the talent of the parodist but also
relies on the public exposed to the parody.

Finally and surprisingly,
the AG appears to let the Member States (and especially the national courts)
assess the content of parodies. By weighing the different fundamental rights at
stake, the courts can limit the application of the parody exception where the
message is radically contrary to the fundamental values of a particular society
such as xenophobia, racism and homophobia but could be extended to other
cultural diversities as long as these are considered by national courts jeopardised by the parody. This last point promises to attract many criticisms as it
is an open door to a kind of censorship.

In conclusion, much leeway
is left to national judges and it is not given that this interpretation amounts
to harmonisation among the Member States. Finally, whether the approach of the
AG will be followed by the CJEU remains to be seen.

3 comments:

Although the parody clause in the Infosoc Directive is an option for Member States, I think it might be arguable, at least in some cases, that the EU Charter of Fundamental Rights requires Member States to exercise this option, in order to protect freedom of expression. This is by analogy with the NS ruling of the CJEU on asylum, which said that Member States might be required by the Charter to exercise an option in secondary EU legislation, if this is necessary to secure human rights. The CJEU said there that Member States' exercise of an option in EU legislation falls within the scope of the Charter, because EU law has set up a system to regulate asylum. Similarly in Case C-13/00 Commission v Ireland (at para 17) the CJEU said that the subject-matter of the Berne Convention, ie copyright and related rights, was 'to a very great extent' governed by EU law. Of course freedom of expression could still be limited in accordance with Art. 10(2) ECHR and Arts. 11 and 52(3) of the Charter. Perhaps the CJEU might think it has to make up for its limited interest in freedom of expression in the Google Spain judgment?

I think it would be more appropriate to say that, under the AG's opinion, the courts MUST limit the application of parody exception when the conveyed message is tainted by racism, xenophobia or other inacceptable views. It is also relevant to note that, infofar I understand, that the AG, in discussing what kind of "views" should be not covered by the parody exception, did not refer to those of a particular national society (i.e., those of the specific natioanl society to which the judge ad quo belongs); rather, he referred to those values (in particular, respect for the human dignity) which are at the core of the European society itself.